WHAT'S HOT IN COPYRIGHT FROM THE EU TO THE US VEF

WHAT’S HOT IN COPYRIGHT
FROM THE EU TO THE US ?
PACA 19th Annual Conference
New York, Oct. 21, 2014

Current status of the lawsuits in the
European Union vs. Google (I)
• Google friend or foe?
• A friend for business?
• An enemy for Copyright and Data protection?

Current status of the lawsuits in the European
Union vs. Google (I)
 Who is Google?
• Search engine: Google’s original service is to offer access to
programs that search documents online with keywords and
return a list of links towards documents
• Lucrative services: Google makes its profits thanks to online
content through services such as Google Adwords, Google
Suggest, Google Analytics, Google Images, Google Video…

 Google images
• In 2005, Google had indexed over 1 billion images.
• In 2010, over 10 billion images.
• And every day Google indexes some more…

 Law on online activities in the EU
In the EU, online activities are regulated by 3 major Directives :
• EU Directive Data Protection 95/46/EC of 24 October 1995
Ex: ECJ 13 mai 2014 « Right to be forgotten »
Google is liable to remove certain links towards webpages containing personal data and
cannot invoke that it’s status of host to avoid this liability
• EU Directive on E-Commerce 2000/31/EC of 8 June 2000
• EU Directive on Privacy and Electronic Communications
2002/58/EC of 12 July 2002

 EU law implementation requirement
• EU Directives have to be implemented in National law
• The time limit for implementing an EU Directive is usually of
two years

 Implementation of EU law: the example of France
• In France, the EU Directive on E-Commerce and the EU
Directive on Privacy have been implemented by the Law for
Trust in the Digital Economy (LCEN Act of 22 June 2004).
• Under this law, the liability regime for online communication
activities depends on whether the Defendant is a host, an
editor or an internet service provider

 What are the implications of the regime of editor or host?
Under Article 6 of the LCEN :
• An editor
• has an active role in the choice of the content
• is held directly liable for any unlawful content displayed online
• A host
• has a passive role in the choice of the content
• is only liable if it has been notified that unlawful content is displayed
by its services and fails to remove the content within a reasonable
time

 Does Google have an active role?
• The essential questions to determine which legal regime will apply to
Google and on which grounds it may be held liable are:
• What is the scope of Google’s activities ?
• What role Google plays in these services?
• Google claims that its algorithm is automatic and the Company only
has a passive role regarding the content displayed online.
• However, Google can modify its algorithm to chose to remove certain
contents.
Ex: The Google images search algorithm was last changed in 2012 to prevent
pornographic images from appearing when non-pornographic search terms are used.

 Is Google an editor or a host?
• Courts have to determine the status of host or editor if the
defendant claims the host limited liability of the LCEN Act
Ex: Cour de Cassation, Commercial Chamber, 29 January 2013, « Cobrason v. Google »
A competitor of the company purchased its Trademark as an AdWord.
The Court of Appeal condemned Google and the competitor to 100.000 € of damages.
However, the Cour de cassation cancelled the decision because the Court of Appeal did
not answer Google’s claim to the limited liability regime under the LCEN Act
• French courts hesitated : is Google a host or an editor?

 Before 2009: Editor
• French courts considered that Google was an editor therefore
directly liable for the content communicated online if the
content infringed a copyright or a trademark
Ex: Paris Court of Appeal, 28 June 2006 “Vuitton v. Google”
Who? Vuitton sued Google for allowing the purchase of AdWords associating its
Trademarks with key words such as replica, imitation or copies.
Decision? Google is held liable of Trademark and Domain Name infringement.
Damages? 300.000€ for Trademark infringement and unfair competition and 60.000€ for
legal fees

 Since 2009: Host
• French courts consider that Google is a host with limited
liability and is therefore only liable if the claimant proves that
Google had knowledge of the display of unlawful content and
failed to remove or delete it reasonably quickly.
Ex: Paris Court of Appeal, 4 February 2011 « Google France v. Auféminin.com et al. »
Why? Google Inc. and Google France did not remove sufficiently quickly the
unauthorized reproduction of a photograph in Google images despite the
photographers’ request.
Sanction? Google is found liable of Copyright infringement.
Damages? 20.000€ for Copyright infringement and 10.000€ for legal fees

 Legal grounds for actions against Google
• In order to win a claim against a Google, Claimants must :
1) demonstrate the elements constituting the infringement or privacy
breach,
2) and prove that Google was notified of the infringement and failed to
react within a reasonable time
Ex: 5 days to remove videos was considered unreasonably long by Paris 1st Instance
Court on 29 May 2012 “TF1 v. YouTube”
• The “Host” limited liability regime applied to Google partly
explains why most Claimants mainly focus on suing their
competitors

 What are the grounds for the claims against Google?
• Privacy/Data protection (A)
• Copyright infringement (B)
• Trademark infringement
• Unfair competition

 Privacy actions (A)
Privacy is a legal basis now often used against Google:
• the right to privacy is considered very important in the
European culture
• EU law on Privacy offer a strong protection to individuals
• Evidence of a privacy violation is easier to provide than
Copyright infringement

 Regulation Authority and data protection
• The French Regulation Authority (CNIL) :
 verifies that Companies respect the French Data Protection Act
 is entitled to fine Companies for violating these obligations
 but the amount of damages is less important than in the US
• The CNIL sanctioned Google for violating Data Protection provisions
 In January 2014, Google was ordered to pay a fine of 150.000€ and to
publish the CNIL decision during 48 hours on its home page.
 The French Administrative Supreme Court confirmed this decision on
February 7, 2014.

 Google Suggest sanctioned on the ground of Data Protection
Law
• Paris Commercial Court, 28 January 2014 « M. X. c/ Google Inc.,
Google France »
 Who? A gallery owner asked Google to delete the negative suggestions
appearing next to his name in the Google search bar
 Why? Google Suggest and associated search are a considered services that
process personal data. Google was held to violate the French law on data
protection.
 Sanction? The Court orders Google to delete the suggestions and pay
10.000 € for legal fees (article 700)

 Court actions on the basis of the right to Privacy
• French Legal basis for actions for privacy violations:
 Article 9 of the French Civil Code (Right to privacy)
• Paris 1st Instance Civil Court, 6 November 2013, « Mosley »
 Google is ordered to stop displaying in Google Images 9 pictures
showing “private” scenes and taken against the person’s will.
 Damages: 1€ symbolic and 5.000€ for legal fees (Article 700 of the
French civil procedure code)

 Copyright actions (B)
• EU law on Copyright is not yet completely unified
– There is an EU Directive 2001/29/EC on copyright and related rights in
the information society
– It essentially requires Member States to provide for:
 Reproduction right
 Communication right
 Distribution right

 Copyright actions : the example of French law
• Under French law, a Copyright infringement claim must
prove:
« A reproduction, representation or diffusion, by any means, of a work
in violation of the author’s rights » (Art. L. 335-3 Intellectual Property
Code).
• A Copyright infringement claim can be based both on the
author’s patrimonial or moral rights

 Google’s « host » limited liability applies to Copyright
actions
• Cour de Cassation, 1st civil chamber, 12 July 2012 « Google
France v. Bac films »
 The fact to make available in Google Video a film without
authorization is infringing
 The Court orders Google Inc. and Google France is not liable
because Google is a host and has a limited liability

 Hyperlinks towards infringing content
• Paris 1st instance Civil Court 28 Novembre 2013
« Allostreaming » (Emergency procedure)
 Who? Cinema and video producers’ associations sued search engines
including Google and Internet Service Providers for allowing access to
websites unlawfully making available films and videos online
 Sanction? The Court orders Google Inc and Google France to take all steps
to prevent the display of results in the search engine linking towards
websites displaying content infringing Copyright.
 Damages? No damages were awarded.

Copyright reforms (II)
 Reforms in the EU and the US
• Major comprehensive Copyright reforms are on their way
both in the EU and in the United States:
– "A Single Market for Intellectual Property Rights“ initiated by the
European Commission in 2011 in the EU
– “The Next Great Copyright Act” initiated by Maria Pallante’s speech in
2013 in the US
• They both focus strongly on the issues concerning Copyright
and the Internet

 A Single Market for Intellectual Property Rights (A)
• Within this Framework, the European Commission has
adopted:
– Directive 2012/28/EU on orphan works on 25 October
2012;
– Directive 2014/26/EU on collective rights management
and multi-territorial licensing of rights in musical works for
online uses on 4 February 2014.

 Latest steps towards the copyright framework in the EU
– the “Licences for Europe” stakeholder consultation
process finalized on 13 November 2013;
– the public consultation on the review of EU copyright
rules from 5 December 2013 to 5 March 2014
– the white paper on the EU copyright reform titled “A
copyright policy for Creativity and Innovation in the
European Union” to be released in 2014

 In France (B)
 Implementation of the Orphan works Directive
• A comprehensive orphan works system had been proposed in 2010
• For now, only the Orphan works Directive provisions will be implemented :
– They only concern national cultural institutions such as libraries open
to the public, educational establishments and museums.
– It concerns written works, cinematographic, audiovisual works and
phonograms and only fixed images incorporated to those works.

 A future collective rights system for pictures on the Internet
• French statute proposal in 2014 the 8th April on collective
rights management on graphic, plastic and photographic
works by referencing and search engines
– Proposal to create a mandatory collective rights management system
similar to the existing systems for reprography and music
• Collecting societies would contract with search engines and
authorize the reproduction and representation of images and
pictures by these services and collect related remuneration.

Conclusion
• Will the digitalization of Copyright lead to a
worldwide reform of copyright law?

WHAT'S HOT IN COPYRIGHT FROM THE EU TO THE US VEF

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